EDWARD WALKER v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4875-04T3

E.W.,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________________________

May 3, 2011

Submitted February 3, 2011 - Decided

Before Judges Wefing, Payne and Baxter.

On appeal from a Final Agency Decision of the New Jersey Department of Corrections.

E.W., appellant pro se.

Paula T. Dow, Attorney General, attorney

for respondent (Lewis A. Scheindlin,

Assistant Attorney General, of counsel;

Christopher C. Josephson, Deputy Attorney

General, on the brief).

PER CURIAM

This matter was commenced when, on November 24, 2004, E.W., a convicted sex offender imprisoned at the Adult Diagnostic and Treatment Center (ADTC) submitted an administrative remedy form (ARF) that contained a request that "the ADTC terminate all broadcasting of religious programming on Channels 10 & 14, cease the expenditure of state funds to operate and maintain the satellite dish used to capture the signal from 3ABN, remove this satellite dish from state property, cease all forms of endorsement of religious proselytizing in the treatment programs, and cease any reliance upon religious values, doctrines or beliefs in decisions affecting conditions of confinement at the ADTC." Additionally, E.W. submitted an ARF disputing a denial of authorization to hold a Third Annual Catholic Recognition Dinner on January 31, 2006 "to recognize the contributions of time and talent by persons from within and without the Catholic Congregation."

Unsatisfied by the Department's final decisions denying his complaints, E.W. appealed to this court. In an unpublished opinion, we affirmed the denial of authorization to hold the recognition dinner. However, we remanded the remainder to permit discovery regarding the religious content of broadcasts transmitted through the 3ABN satellite dish, a gift of the Jehovah's Witnesses, and regarding therapeutic materials utilized in the ADTC and for further briefing with respect to the Establishment Clause arguments that formed the core of E.W.'s appeal. E[.]W[.] v. New Jersey Department of Corrections, No. A-4875-04 (App. Div. August 8, 2008).

Thereafter, we were informed that the ADTC had permanently removed the satellite dish given to it by the Jehovah's Witnesses. Additionally, over time, the State revised its treatment materials in an effort to remove their religious content.

The matter finally came before us again on February 1, 2011. In that connection, E.W. submitted an extensive brief, in which he made the following arguments:

POINT I

Actions Of DOC Serve To Establish Religion In Violation Of The Federal And State Constitution.

A. State May Not Act With The Purpose Or Effect Of Advancing Or Inhibiting Religion Or In A Manner That Creates Government Entanglement With Religion.

B. Government May Not Expend Taxpayer Funds To Support, Endorse, Or Promote Religion, Even In Service Of Legitimate Government Interests.

1. Does the Statute or Government Practice Have a Secular Purpose?

2. Does the Practical Effect of DOC's Actions Advance Religion?

3. Do[es] the DOC Promotion of Religious Content in SAPP Materials Unnecessarily Entangle Government with Religion?

C. DOC's Otherwise Unconstitutional Endorsement Of A Particular Religious Sect Over Other Religions And Non-Religion Is Not Cured By Respondent's Opt Out Option.

1. Coercive Indoctrination of Religious Values and Beliefs in a Prison Setting Through Therapy Materials Violates the Establishment Clause.

D. Turner Test Either Inapplicable Or Subsumes The Establishment Clause Analysis.

1. Violations of the Establishment Clause Also Violate the Legitimate Penological Interest Prong of Turner.

2. Evaluation of Claims Raised Under the Establishment Clause Do Not Fall Under the Turner Standard.

POINT II

State Actions Complained Of Violate The Equal Protection Clause Of The State And Federal Constitutions.

A. The Equal Protection Clause of the Fourteenth Amendment of the Federal Constitution, Bans State Actions That Favor Those Who Hold Religious Beliefs Over Those Who Do Not.

B. Equal Protection Under the New Jersey State Constitution Bans State Actions That Favor One Religion Over Another Or Religion Over Non-Religion.

The Department of Corrections responded by arguing that its treatment programs are now wholly secular in nature, and it has submitted copies of treatment materials to confirm that fact.

Our review of the materials submitted on appeal by the Department of Corrections satisfies us that they are, in fact, wholly secular in nature, and thus no potential Establishment Clause violation exists. As a consequence, we dismiss this appeal as moot.